Plans & Policies

Managing Conflicts of Interest Policy

Last updated 04/03/98 - administered by the Information Services Manager ext. 8129

INDEX

Introduction

We must be impartial and fair in our dealings with ratepayers, residents, suppliers and the general public. Their trust, confidence and support of Council goals and objectives are necessary if we are to do our job well.

Councillors and members of staff must ensure that opportunities do not exist for their interests, or those of people close to them, to conflict with the impartial performance of their Council duties.

Any potential, real or perceived conflict between an individual's interests and those of the Council must be resolved in favour of the Council.

Definition of Conflict of Interest

Conflicts of interest include both pecuniary and non-pecuniary interests. Non-pecuniary conflicts of interest are just as important as pecuniary interests.

A pecuniary interest is an interest that a person has in a matter because of the reasonable likelihood or expectation of appreciable financial gain or loss to the person or another person with whom the person is associated. Associated persons include relatives, partners and employers (see Section 442 of the Local Government Act 1993).

A non-pecuniary interest may include family relationships, friendships, positions in associations, and other interests that do not involve financial gain or loss.

A Conflict of interest exists where:

• you have a personal interest that could lead you to be influenced in the way that you carry out your Council duties

• you have a personal interest that could lead a fair person to think that you could be influenced in the way that you carry out your Council work and duties; or

• a family member, relative friend associate or anybody close to you has a personal interest that could lead you to be influenced in the way that you carry out your Council work and duties, or could lead a fair person to think that you could be influenced.

• Nothing in this definition precludes obligations of Councillors and designated staff to notify of conflicts of interest in pecuniary matters.

Some examples of situations that may give rise to conflicts of interest include:

• having the responsibility for hiring a consultant where one of the applicants is a good friend;

• supporting proposals from a club, where one spends a great deal of one's leisure time;

• conducting a health inspection of a premise in which one has a financial interest;

• supporting proposals from groups of people or individuals with whom one has regular personal contact.

The presence of a non-pecuniary conflict of interest need not mean automatic or complete exclusion from participating in discussion and decision making.

Perceptions

Not only must our actions be free of any conflicts, but we must ensure that they are seen to be free of any conflicts of interest.

It is therefore important that you consider what other people might think of the situation. These other people could include, for example, unsuccessful tenderers, other potential suppliers, other businesses, fellow Councillors and staff, residents and members of the public.

Notifying A Real, Perceived Or Potential Conflict of Interest

General

Staff or Councillors wishing to discuss a real, perceived or potential conflict of interest should initially contact the General Manager, who will act as an objective party in assessing whether such a conflict of interest may or will arise. The General Manager may then refer the matter for independent legal advice.

Preliminary discussions with the General Manager about potential conflicts of interest will be regarded as confidential, provided these discussions do not lead to a notification of a conflict of interest.

The objective of notification is to protect you and Council. In many cases, only you will be aware of the potential for a conflict of interest.

The onus for notification is therefore on the individual Councillor or staff member.

Notification of Conflicts of Interest by Staff

Staff must notify a conflict of interest as soon as they are aware one exists. Conflicts of interest must be notified in writing preferably in a standard format and delivered to the General Manager. Notifications of Conflicts of Interest by staff will be presented to the Ethics Committee at the discretion of the General Manager.

Notification of Conflicts of Interest by Councillors

Councillors must notify the Mayor or the General Manager in writing, as soon as they are aware that a conflict of interest exists. If a conflict arises during a meeting, such as a Council or committee meeting, you should inform the meeting of the interest.

The General Manager will ensure that written notifications of conflict of interest by Councillors are presented to the Ethics Committee.

Notification of Conflicts of Interest by the Public

Members of the public may notify a conflict of interest either directly to the Mayor or the General Manager. Conflicts of interest notified by the public must be in writing, preferably in a standard format.

Copies of the standard format for notification of conflict of interest shall be available at all Council meetings, Committee meetings, Council's Information Counter, the General Manager's Office and Employee Services Section. The standard format will also be available on computers for Councillors and staff.

Areas Which Require Special Attention

Tendering and Purchasing

Councillors should not participate in a tendering/purchasing process if they feel they have a conflict of interest. If they are uncertain about whether they have a conflict of interest, they should discuss this with a representative of the Ethics Committee.

Where a staff member's interest can be identified through any of the criteria in the definition of conflict of interest, that staff member will not participate in the tendering/purchasing selection process.

Staff and Recruitment

Councillors should not participate in a recruitment process where themselves, a relative or friend stands to or may gain or lose from it. Councillors should immediately notify the nominated officer overseeing the recruitment if they feel they may have a conflict of interest.

Any staff person whose interest in a staff position could be identified through any of the other criteria in the definition of conflict of interest, shall immediately notify the nominated officer overseeing the recruitment. An assessment by the nominated officer of that person's ability to participate in the recruitment will be provided to the General Manager prior to any participation of that person in the recruitment process.

Gifts, Benefits and Hospitality

Councillors or staff must never accept any gift or benefit if:

• the person offering it, or a fair person, would expect you to be influenced in the way you do your job or carry out your duties

• you would feel a sense of obligation or debt to the person offering the gift or benefit; or

• you or the Council are likely to be compromised.

Gifts and benefits that are not token in nature will be entered in a gift register. The following issues must be taken into account when determining whether a gift, benefit or hospitality is token:

• the scale, lavishness or expense/cost/value of the gift or benefit

• the frequency of occurrence

• the degree of openness surrounding the occasion or gift.

A Register of Gifts, Benefits and Hospitality shall be kept by the General Manager for this purpose.

Wherever possible, staff shall be required to notify their Director prior to receiving any gift, benefit or hospitality. A Register of Gifts, Benefits and Hospitality shall be kept by the Director. The Director shall inform the General Manager immediately of all such notifications.

Wherever possible, the General Manager shall notify the Mayor prior to receiving any gift, benefit or hospitality. The notification shall be kept in the Register of Gifts, Benefits and Hospitality for Councillors.

Gifts, benefits and hospitality cover, but is not limited to:

• food or alcohol, including lunches or dinners

• giveaways or prizes

• tickets to cultural or sporting events

• personal services (eg, use of equipment, computers or cars)

If a Councillor is uncertain whether they are receiving a gift, benefit or hospitality, they should discuss the matter with the General Manager.

If staff are uncertain whether they are receiving a gift, benefit, or hospitality, they should discuss the matter with their Director.

If the General Manager is uncertain whether he is receiving a gift, benefit or hospitality, he will discuss the matter with the mayor.

Election Support and Donations

Significant donations of any kind by a person or organisation given directly to a Councillor's election campaign must be notified immediately. These donations may be direct or indirect. Donations through raffles, auctions and competitions should either be notified through the electoral funding declaration or included in the register if money raised is specifically allocated to individuals.

If the donation constitutes a pecuniary interest (eg, the donation is cash and greater than $500), the Councillor must publicly disclose in accordance with Local Government provisions.

Non-pecuniary donations (eg, major support in handing out how to vote pamphlets, letter dropping, signing letters in support of a Councillor) must be notified to Council as soon as is practicable.

Such disclosures will be assessed by the Ethics Committee, in accordance with the agreed process contained in this policy (including right of appeal).

Again, the onus is on the individual Councillor to inform Council of any election support or donations.

Secondary Employment

Staff will require the approval of their Director prior to undertaking paid work outside of work hours. No approval for paid work outside of work hours will be allowed if it meets any of the criteria in the definition of conflict of interest.

Use of Council Facilities and Equipment

Councillor use of facilities and equipment is covered in the "Payment of Expenses and Provision of facilities policy for Councillors" (March 1997). Councillor requests for access to facilities and equipment not covered in this policy should be provided to the General Manager for his determination.

Staff use of Council facilities and equipment is covered in "A Little Guide to the Local Government Code of Conduct". Briefly, staff must not use Council property for private purposes. If staff wish to use Council facilities and equipment for private purposes, they require approval of their Director or the General Manager.

Access to Council Offices

Councillors shall have access to the Council chamber, committee rooms, mayor's office, councillors' room and public areas of the council's buildings. Councillors will require the approval of the general manager prior to entering staff-only areas. Standing approvals for access to some staff-only areas will be provided, if required, by the general manager.

Councillors who are not in pursuit of their civic duties have the same rights of access to council buildings and premises as any other member of the public.

Record Keeping for Conflicts of Interest

• standard notification letter for Councillors and staff for conflicts of interest, including the development of a template for electronic mail use

• creation of two confidential files within the current record-keeping system called "Conflicts of interest - Councillors" and Conflicts of Interest - staff"

• Register of gifts and benefits for staff and Councillors

• Register of pecuniary interests for designated staff and Councillors

Records on all conflicts of interest will include the following information:

• all conflict of interest notifications

• failures to disclose

• disclosure by others (eg, colleague or member of the public) about a Councillor and/or staff

• vexatious claims

• assessment of the matter and how it was resolved

• any action (eg, resolutions) taken by Council

• any appeals on process

The notification for conflicts of interest will include the following:

• the person's name, position in Council (if appropriate), contacts phone number/address

• the nature of the conflict of interest, real, perceived or potential

• date of notification

• suggested course of action to deal with conflict of interest

Registers of Gifts, Benefits and Hospitality for Councillors will be kept with the General Manager. Each Director will be responsible for keeping a register of gifts, benefits and hospitality for their staff.

Assessing and Resolving Conflicts of Interest Matters

• criteria for determining whether an assessment of conflict of interest exists will be those contained in the definition of conflict of interest

• any notification of pecuniary conflicts of interest will immediately prevent the individual involved in considering or discussing the matter in which they have the interest and will not be able to vote on any question relating to the matter.

• all relevant information should be made available at the time of assessment (including legal or other advice, if required)

• initial assessments of conflicts of interest matters (other than pecuniary) will be completed within three days of receipt of the notification

• any action required on a conflict of interest (eg, sanctions) will be determined within 14 days of receipt of the notification

• when determining the best option to resolve the conflict of interest, the test will be that the option ensures impartiality, fairness and protection of the public interest.

Sanctions Available to Deal with Breaches of Codes of Conduct

Sanctions for staff will be determined by the General Manager.

Sanctions for Councillors will be determined by Council, upon recommendation from the Ethics Committee.

Sanctions for staff will include, but not be limited to:

• withdrawal from project or issue where conflict of interest exists

• direction to the individual to remove the source of conflict

• counselling

• suspension with pay

• withdrawal (temporary or permanent) of access to additional work opportunities such as overtime or training

• suspension without pay

• dismissal (if appropriate)

Sanctions for Councillors will include, but not be limited to:

• limited involvement in the matter (eg, participation in discussion but not in decision making)

• no involvement in the matter

• direction that the Councillor concerned removes the source of conflict

• passing a censure motion at a Council meeting

• public disclosures of inappropriate conduct (eg, through the annual report, media, weekly news columns)

• requesting a formal apology

• counselling

• prosecuting any conflicts of interest which breach the law.

Any conflicts of interest which appear to breach the law will always be referred to the police for investigation and action.

Appeals on Actions Taken to Resolve Conflicts of Interest

Councillors will advise the Ethics Committee within four days of receiving notification of action taken to resolve a conflict of interest of their intention to appeal this decision. Notification of intention to appeal should be in writing and outline the reasons for the appeal.

The Ethics Committee will refer the appeal to the next Council meeting, after an assessment has been conducted. A full report from the Ethics Committee will accompany the Councillors request to appeal.

The decision by the Council on the appeal will be final.

Staff will advise the General Manager within four days or receiving notification of action taken to resolve a conflict of interest of their intention to appeal this decision. Notification of intention to appeal should be in writing and outline the reasons for the appeal.

The General Manager's decision will be final.

For actions taken to resolve a staff conflict of interest, which may be defined as disciplinary actions by the Local Government (State) Award, the procedures outlined in that Award will apply.

Training and Education on Managing Conflicts of Interest

Initial training will be provided as soon as this policy is incorporated into the relevant codes of conduct/practice. Council also commits to ongoing education and training in this and other issues relating to ethical behaviour.

The initial program is to be:

• Three (3) hour sessions are conducted for Councillors and senior staff only on Council's Code of Conduct and requirements for managing conflicts of interest (which will include other elements of our Codes of Conduct)

• Quarterly reminders to Council about requirements to disclose pecuniary and non-pecuniary interests by way of message on monthly Council agenda

• Three hour information sessions for all staff to be conducted by Directors and Training Officer

• Quarterly reminders in Waverley Pipeline (Staff newsletter) about requirements to disclose pecuniary and non-pecuniary interests

• Inclusion of information on probity and ethical behaviour in Council induction programs.

Review of Conflict of Interest Policy

This policy shall be reviewed in 3 months' time.

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